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Article by Rakshandha Darak
Student of Alliance University, Bangalore
Abstract
The book titled EU Private International Law by Peter Stone and published by Edward Elgar is based on the laws of private international law or the conflicts of laws. It deals with different kinds of problems called such as the relations which are governed by the private law between different countries and hence they are also called as the conflicting laws. Such problems can be related to an individual’s personality, domicile, family matters, nationality, residence, and place of incorporation.
Every country has its own set of rules which in their profound developed legal system and such rules form the part of their private international law and they are different in all the countries.
The harmonization of the private international can be further achieved by the harmonization of laws at the EU levels by the measures which are adopted by the legal framework of the European community and the entire focus of this book is based on this conception.
Key Words: Conflicting laws, Private International Law, Domicile, Nationality, Residence
Outline of the book
This book makes an attempt to offer a critical assessment on four areas of laws that is, civil jurisdiction and judgments and the laws which are applicable to civil obligations, family matters, and insolvency laws. This book has made an attempt to analyze and critically evaluate the principles of international law with respect to EU law. In this book, there is a separate section for the case laws of the UK, EU member states, and the ECJ case laws. Part I of the book which is titled, ‘Introduction’ states the basis on which there is the harmonization of private international law rules with special reference to EU laws.
In part II of the book, the author discusses the civil jurisdiction and the judgments of private international law by referring to the EU rules. In this part, the author focuses on the historical assessment of the changes done in the Brussels Convention, 1968 till the final version of the Brussels Regulation. Further part II of the book discusses about domicile and how it becomes a connecting factor in the Brussels Convention and its regulation. The author moves ahead to explain the alternative grounds of jurisdiction and the changes which are done in Article 5 of the Brussels Convention regarding it. This book has also given place to the jurisdiction rules especially for the contracts made under the consumer and insurance act. The part II of the book further discusses civil jurisdiction and judgments and is divided into 10 chapters such as the history, domicile, alternative jurisdiction, concurrent proceedings, enforcement procedures, etc. In chapter 1 of part II, the author talks about the history and the scope of private international law by making a reference to Brussels I regulation, Brussels convention, Hague Conventions, and Lugano Convention. In part II, the author discusses exclusive jurisdiction under article 22 of the Brussels I regulation and they apply to all the matters regardless of domicile and apply to all subject matters between the parties. Article 22 (5) of the Brussels I Regulation is applicable to the enforcement of judgments. In the case of Owens Bank .V. Bracco[1], it was stated by the court that the regulation does not apply to the proceedings in the member states with regards to the enforcement of judgments between the non-member states. The author further states that chapter II of the Brussels convention applies to the judgments which are given by the courts of different member states. Article 31 of the Brussels I regulation provided for the provisional measures for the member states having jurisdiction with special reference to different subject matters. In the case of Van Uden .V. Deco-Line[2], the court mentioned that the substantive jurisdiction provided under articles 2 to 5 is also applicable to the provisional measures of the member states as well. In this part, the author has also discussed about the enforceability of judgments in the Brussels I regulation especially under articles 32-56 of the convention. The author further discusses about the enforcement procedure of judgments in the latter chapters of this part.
In part III of the book, the author tries to put some light on family matters by referring to private international law which comprises matrimonial proceedings, parental responsibility, and the maintenance of the family and the property. In this part of the book, the author has tried to analyze the family under the preview of the Hague Convention on parental responsibility and measures for the protection of the children and the 1980 Child Abduction Convention. Part III of the book further discusses about the choice of law in respect of obligations and is divided into 4 chapters such as contracts, protected contracts, torts, and restitution. In this part, the author in the chapter of contracts states the articles of Rome conventions and the substantive law regarding contracts is regulated by EC convention. It further states that Article 17 of the Rome Convention does not apply to contracts but it applies to reciprocity according to article 2 of the Rome convention. The scope of the contacts referring to the Rome convention applies to article 1 which is based on the choice of rules and the contractual obligations. In the second chapter of this part, the author has discussed about the protected contracts. In this chapter, the author has discussed about such contracts which protect the weak contacts between the consumers, employees, and the insurance companies. They are protected under Articles 5 and 6 of the Rome convention. But according to articles 1(3) and 3 of the Rome convention it does not consider the contracts of insurance. In the case of American Motorists Insurance Co. V. CellStar Corp.,[3] it was stated by the courts that the insurance contracts located in Europe and around, the Rome convention applies to them unless the risk is predominately been situated in that particular member state. In the chapter of Torts, the author talks about the regulations of the Rome II proposal. Its scope is limited to the situation which involves a conflict of laws between the states, it also includes non-contractual obligations between civil matters but it does not apply to revenue, customs, and administrative matters. The main rules of torts are discussed under article 3 of the Rome II Proposal. These rules are applicable to product liability, unfair competition, defamation, and privacy. In the final chapter of this part, the author talks about restitution and how the Rome II proposal deals with restitution obligations.
Part IV of the paper discusses about family matters and is divided into 3 chapters such as matrimonial proceedings, parental responsibility and family maintenance, and matrimonial property. Part, the author in the chapter on matrimonial proceedings the author talks about community regulation and how the matrimonial proceedings are governed by the EC regulation, and the scope of it is limited to the rules of direct jurisdiction laid down in Brussels I regulation and the enforcement of the judgments depends on the rules of Brussels I regulation and not on the choice of law. Further in the case of direct jurisdiction, articles 1-3 and 16-20 of Brussels II regulation deal with direct jurisdiction to entertain the petitions of divorce, separation, and annulment.[4] This part also discusses about habitual residence and states that Brussels II regulation has not defined habitual residence and states that it is usually defined by the community law of different countries. In the chapter on parental responsibility, the author talks about of Brussels II regulation is confined to the proceedings and orders for the children of both the spouses when the matrimonial proceedings are sustaining between the parents. It has also been stated that the Brussels II regulation has further abolished the declaration of enforceability with respect to orders of access and instead it respects the supplements of the Hague Convention on child protection of 1980.[5] The scope of the Brussels II regulation when it comes to parental responsibility is limited to all types of applications which are covered under section 8 of the Children’s Act, 1989. In this chapter, the author also discusses about abduction and states that all the EC member states and almost all the countries are members of the Hague Convention on civil aspects of International Child Abduction. The matter of abduction of discussed under articles 3-5 of the Hague conventions.[6] In the final chapters of the IV part, the author mentions about family maintenance and matrimonial property. It states that Brussels II regulation does not apply to the matrimonial property instead such matters fall within the scope of Brussels I regulation.
The part V of the paper is titled insolvency. It talks about how the Brussels convention has given a separate place to the insolvency proceedings which are place between the individuals of different countries. According to article 1(2) (b) of the Brussels Convention, it states that the insolvency proceedings under the preview of private international law require a different set of rules other than civil and commercial disputes. The scope of the insolvency regulation is limited to collective insolvency proceedings which also includes disinvestment of the debtor and the appointment of a liquidator as well. This indicates that it includes both windup proceedings and reorganization proceedings as well. The insolvency regulation of the private international law is based on the principle of unity and providing universality to all the legal frameworks existing in the world. This part further discusses the main proceedings of insolvency with regards to article 3(1) of the Brussels Convention. It has been further stated that the insolvency regulation deals with the choice of law and also on the jurisdiction of other judgments. It is further mentioned by the author that when a judgment is opened in insolvency regulation it is done with the help of article 20 and article 27 of the insolvency regulation provided for the secondary proceedings and it can be opened with or without the debtor’s insolvency. At the end of part IV, the author makes an attempt to analyze the other proprietary exceptions of insolvency regulation such as right in rem, immovable or registered property, reservations of title, pending actions against the property, set off, financial markets. It also discusses the renvoi and the reflex effect on the insolvency regulation and how they contain no provisions explicitly regarding it. It states that whenever such issues arise the internal law is given more priority over others. In the last part of the book, the author discusses about the matters of insolvency in private international law. This part discusses jurisdiction, choice of law, and the enforcement aspects of insolvency in private international law.
Conclusion
This book proves to be a well-researched piece on private international law considering the rules of the EU. This book has provided that European integration is the driving force under the private international law and provided the insights of consumer laws, torts, enforcement, and procedure with respect to the preview of private international law. The main intent of the author behind the book is to understand the role of private international law in the European community. Both the subject matters have grown enormously and evolved in a drastic manner. In this book, the author has made an attempt to analyze the Brussels convention, 1968, and how in 2000 this convention was replaced by the direct regulations and procedures which are mentioned under the private international law. The author has the viewpoint in the mind that, since the past few years, the European community has made many efforts for the harmonization of laws of all the member states on many topics which are mentioned under the private international law. The author has given a broad elaboration regarding the Brussels convention in the initial opening chapters of the book. The way he has divided the book into 5 parts makes it to very readable and approachable book for private international readers. In chapters 12 and 13 of the book, the author has thrown the light on the Rome convention and discussed them with respect to choice of law, contracts, protected contracts, torts, and restitution. The author has also attempted to analyze the position of matrimonial proceedings, parental responsibility, and property with respect to Brussels II regulation. The final chapter of the book which is in part V of the book it examines the insolvency regulation under private international law.
This book is considered to be a well-researched piece under private international law because of the various case laws which are mentioned under different chapters which makes the author’s point very clear when it comes to his explanation and also provides the way in which the judges interprets the law while providing justice for the benefit of the member states.
As compared to other books of private international law, this book proves to be an easy book to understand and interpret by the readers of the book.
[1]Case C-129/92, [1994] ECR I-117 [2]Case C-99/96, [1999] ECR I-2277 [3] [2002] 2 Lloyd’s Rep 216. [4]Articles 5-12 of the Brussels II regulation. [5]The Hague convention on civil aspects of International Child Abduction, 1980. [6] Abduction Convention works along with the Child Abduction and Custody Act of 1985.